ESE parents argue in motion that indifference is as bad as discrimination
The federal lawsuit between the family of Isabella Herrera and the Hillsborough County school district is still in the early filings stage. In its motion to dismiss last month the district argued that the Herreras, whose daughter died after going into respiratory distress on a school bus, had no grounds to file a discrimination lawsuit, because there was no deliberate discrimination against their daughter. What they were alleging amounted to negligence, the district argued. But they were not alleging negligence, which would likely make it a state case.
In a response filed on Friday, the Herreras said the school district, in its motion, did not prove the lawsuit is improper, and therefore the judge should not dismiss it. What's more, their lawyers contend that it would not be necessary to prove the discrimination was intentional in order to allow the suit to go forward.
"The Supreme Court has recognized that discrimination against the disabled is typically due to apathetic attitudes rather than affirmative animus," they wrote. "The ADA (Americans with Disabilities Act) is intended to combat not only intentional discrimination, but also benign neglect, apathy and indifference so that qualified individuals receive transportation services in a manner consistent with basic human dignity."
The family's lawyers, the Maher Law Firm in Winter Park, are seeking to prove that the district is short-changing special-needs students such as Isabella, who had a neuromuscular disorder and was seven years old when she died on Jan. 26.
"The defendants were on notice of Herrera's handicaps and limitations," the lawyers wrote. "They were also on notice that Herrera required specialized ESE transportation daily with medical equipment. Further, they were on notice that proper positioning and supervision of Herrera was necessary. The absence of action as to any of these created an unreasonable risk of harm to her and ultimately resulted in her death. The complete lack of training, oversight, and supervision, in addition to the complete disregard of the known and serious risks of injury and harm clearly is sufficient to establish a claim for discrimination by deliberate indifference, in violation of Herrera's civil rights."
Close to 9 months passed between Isabella's death and the lawsuit, which the lawyers announced in a news conference. That was the first time most school board members learned of the incident. When the Tampa Bay Times requested an incident report about Isabella's death, a district spokesman said there was no report. There also was no record of any investigation even though the bus driver and aide did not call 911 when Isabella stopped breathing. The explanation given was that no investigation was needed because the employees were following staff protocol, which was to radio or call their supervisors or the dispatch operator, and have them call 911.
The lawsuit was filed about a week after ESE student Jennifer Caballero drowned in a retention pond behind Rodgers Middle School. Since then, the district has been working on a multi-faceted plan to improve ESE training and safety procedures districtwide. A workshop is scheduled on Jan. 31 to discuss a long list of recommendations from the district work group. One of them is to document all medical incidents, such as what happened to Isabella. Parents and community members who want to see the recommendations and offer their input can click here.